AP Exclusive: ACLU seeks OAS probe of Padilla case

Article by: PETER JAMES SPIELMANN

Associated Press

December 11, 2012 - 2:00 AM

NEW YORK
- The American Civil Liberties Union says it will ask the Organization of American States' human rights commission to investigate the U.S. government for allegedly violating the rights of convicted terrorism plotter Jose Padilla by labeling him an "enemy combatant" a decade ago and subjecting him to interrogation that amounted to torture, including sleep and sensory deprivation in solitary confinement.

The watchdog legal group told The Associated Press that it plans to file a petition Tuesday morning to the Inter-American Commission on Human Rights, which serves as the human-rights investigation arm of the Washington-based OAS. The regional international organization promotes cooperation among the 35 independent countries of the Americas.

Jamil Dakwar, the ACLU's human rights program director, said this will be the first-ever petition to be filed to the OAS commission by an American citizen against the U.S. government alleging torture and abuse.

It asks the OAS body to recommend that the United States publicly acknowledge the violations and apologize for its unlawful conduct.

The State Department and the Justice Department were contacted about the issue, but did not have an immediate response on Monday night.

Among the allegations in the ACLU's petition are that:

_Padilla's interrogation included "painful stress positions, sleep deprivation and sensory deprivation, which caused him severe physical and psychological trauma that persists to this day." It characterized these as "physical and psychological torture and abuse."

_Padilla was denied contact with his lawyers or family during interrogation.

_He was not allowed to practice his religion, Islam. The copy of the Quran he was initially allowed was confiscated.

_His mental state has deteriorated so badly that he often refused to meet with lawyers or his family, fearing that would result in his return to military custody.

The ACLU said it was filing the petition on behalf of Padilla and his mother Estela Lebron, contending her rights were also abused when she was not allowed to communicate with or visit her son for years. It said her health also had been damaged by the ordeal.

Padilla, now 42, a one-time Chicago gang member and car thief, converted to Islam and had lived in Egypt for four years prior to his arrest. He was detained in 2002 in Chicago when he flew back to visit his mother. He was designated an "enemy combatant" — a status applied by the administration of President George W. Bush to al-Qaida and Taliban terror suspects after the Sept. 11, 2001 attacks. It meant that he was placed in military custody and denied access to the U.S. civilian justice system.

Padilla was initially held as a "material witness" to the Sept. 11 terror attacks. Authorities at the time said he was on a terrorist mission to detonate a radioactive "dirty bomb" in a major U.S. city, but he was held at the Navy brig in South Carolina for more than three years without being charged. Padilla eventually was added to an existing South Florida terrorism indictment, and was convicted in U.S. federal court in 2007 of supporting terrorism in Kosovo, Bosnia and Chechnya and is serving a 17-year sentence.

The Inter-American Commission on Human Rights can undertake investigations of complaints, and in the past has probed massacres in Peru, Colombia and Guatemala. It can also issue "precautionary orders" to ask for the protection of the rights of people in cases under review, and has done so in the case of several Guantanamo detainees who were not U.S. citizens.

"The United States has its obligation under the Constitution and federal law, but it also has its obligations under international law. The U.S. will have to formally respond to the allegations in that petition as if it was filed in a federal court," said Steven Watt, the ACLU attorney filing the petition.

Watt said the OAS commission would probably give the U.S. government about six months to prepare a response, reflecting the legal complexity of the case, which churned through U.S. courts for 10 years and reached the U.S. Supreme Court twice.

The ACLU's filing says those initial accusations against Padilla, according to a sworn U.S. declaration, were based on statements "made by two unnamed suspected terrorists who had been detained and interrogated outside of the United States," one of whom later recanted and the other who had been drugged during interrogation.

In 2004, the U.S. Supreme Court refused to hear Padilla's case against Defense Secretary Donald Rumsfeld and other U.S. officials in which he claimed he was being held illegally and denied due process. The high court ruled he should have taken the case to a federal court in South Carolina and that the brig commander should have been the target of the case. In June of this year, the Supreme Court declined to hear another appeal of the case.

"Denying Jose Padilla his day in court makes a mockery of United States' commitment to human rights and sends a dangerous message to nations in the Western Hampshire that impunity is an acceptable norm rather than the exception," Dakwar said.

"What incentive will Cuba or Venezuela have to follow the rule of law when the United States denies victims of torture, including its own citizens, access to justice?"

In September, the 11th U.S. Circuit Court of Appeals ruled that Padilla's original 17-year sentence was too lenient for a trained al-Qaida operative who also had a long criminal record as a Chicago gang member. The appellate court granted a request by the Justice Department that Padilla be resentenced. Padilla, according to trial testimony, trained at an al-Qaida camp in Afghanistan.

Last month, Padilla's resentencing was postponed until Jan. 29 by a federal judge after his defense attorney, Michael Caruso, argued his client is deteriorating psychologically after years of isolation and needs more time for family visits.

Caruso said Padilla's family in South Florida has only been able to visit him one time since 2008 at the Supermax prison in Florence, Colorado, where he is kept in solitary confinement 23 hours a day and allowed no contact with other inmates. His mother and sisters were able to see him more regularly after he was taken to a Miami detention center to await resentencing.

Caruso called the harsh prison conditions at the Supermax akin to torture, which was rejected by Assistant U.S. Attorney Brian Frazier. "He is not in some black hole of Calcutta," Frazier said.

Counting time off for good behavior, Padilla's current prison release date is Jan. 4, 2022.